{"id":149814,"date":"2011-08-02T00:00:00","date_gmt":"2011-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/whether-reporters-of-local-papers-vs-state-of-on-2-august-2011"},"modified":"2019-01-28T00:33:55","modified_gmt":"2019-01-27T19:03:55","slug":"whether-reporters-of-local-papers-vs-state-of-on-2-august-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/whether-reporters-of-local-papers-vs-state-of-on-2-august-2011","title":{"rendered":"Whether Reporters Of Local Papers … vs State Of on 2 August, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Whether Reporters Of Local Papers … vs State Of on 2 August, 2011<\/div>\n
Author: Kundan Singh,<\/div>\n
     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD\n\n\n\n     SPECIAL CIVIL APPLICATION No 6458 of 2001\n\n\n\n\n     For Approval and Signature:\n\n\n\n                Hon'ble MR.JUSTICE KUNDAN SINGH\n\n\n     ============================================================\n<\/pre>\n
    1. Whether Reporters of Local Papers may be allowed      : YES
\n       to see the judgements?\n<\/p>\n
    2. To be referred to the Reporter or not?                  : YES<\/p>\n
    3. Whether Their Lordships     wish to see the fair copy   : NO
\n       of the judgement?\n<\/p>\n
    4. Whether this case involves a substantial question       : NO
\n       of law as to the interpretation of the Constitution
\n       of India, 1950 of any Order made thereunder?\n<\/p>\n
    5. Whether    it is to be circulated to the Civil Judge?   : NO<\/p>\n
     ————————————————————–
\n     ASIF ENTERPRISES
\nVersus
\n     O.N.G.C. LIMITED\n<\/p>\n
     ————————————————————–
\n     Appearance:\n<\/p>\n
          Mr. Y.N.Oza, Sr. Advocate for MR KRISHNA G PILLAI
\n          for Petitioner.<\/p><\/blockquote>\n
          Mr. S.B.Vakil, Sr. Advocate with MR RAJNI H MEHTA
\n          for Respondents No. 1-5<\/p>\n
     ————————————————————–\n<\/p>\n
                CORAM : MR.JUSTICE KUNDAN SINGH<\/p>\n
     Date of decision:11\/01\/2002<\/p>\n
CAV JUDGEMENT<\/p>\n
     This petition has been filed for quashing
\n     and setting aside the impugned order dated 23rd    January,
\n 2001 passed by the respondent no. 5 at Annexure “A” and
\nfor a direction to the respondent Corporation to accept
\nthe tenders submitted by the petitioner for contracts as
\nmentioned in para-8 of the petition and to award the said
\ncontract to the petitioner in accordance with law as if
\nimpugned order dated 23rd January, 2000 was not passed
\nand to issue new tender forms to the petitioner for
\nfuture cotnracts and accept and process the said tenders
\nfor future contracts in accordance with law.\n<\/p>\n
2.The petitioner is an approved contractor
\nof the respondent Corporation since 1990 and various
\ncontracts have been completed by the petitioner and it
\nwas awarded on average about 40 contracts per year from
\n1992 to 1997 and they were completed to the satisfction
\nof the Corporation.      The dispute relates in respect of
\nthe contracts awarded in the year 1997 which are as
\nfollows:\n<\/p>\n
(a) For laying of 8″ dia effluent pipe from SND GGST
\n         to ETP Jhalora was awarded by agreement no.
\n         BDA\/CMD\/TL\/CA\/23\/96 dated 29.11.1996.\n<\/p>\n
(b) For laying of 8″ dia effluent pipe from EPP to
\n         Sanand   Plymer   Plant   was by agreement No.
\n         BDA\/CMD\/CA\/24\/97 dated 1.1.1997.\n<\/p>\n
The petitioner submitted two bank guarantees bearing nos.
\n173-1 for Rs.    2,38,780\/- and 169-1 for Rs. 3,41,743\/-.
\nAs the contracts could not be completed within prescribed
\ntime limit, the bank guaratees were required to be
\nrenewed.    At that time, it was found that those bank
\nguarantees were fake and they were furnished by the
\npetitioner due to some mistake of the employee of the
\npetitioner. Hence, the petitioner submitted two fresh
\nbank guarantees which were accepted by the respondent
\nCorporation on the recommendation of the committee.
\nAfter completion of the contract to the satisfaction of
\nthe Corporation, both the bank guarantees were returned
\nto the petitioner. As furnishing of fake bank guarantees
\nby an employee of the petitioner amounts to misconduct,
\nthat employee was terminated from service         of   the
\npetitioner.    Thereafter, the petitioner was also awarded
\nthe contract by an agreement dated 15\/16.9.1997 for Rs.
\n28,92,689.18 ps.       and   dated 10\/17.7.1998 for Rs.
\n58,56,450\/-. The respondent Corporation also awarded to
\nthe petitioner 45 contracts for Ahmedabad project and 32
\ncontracts for Mahesana project and those contracts were
\nsuccessfully    completed   by   the   petitioner to the
\nsatisfaction of the respondent Corporation.    The letter
\ndated 16th May, 2000 was issued to the petitioner. One
\nMr. G.L.Gupta was the General Manager of the Western
\nRegion business centre of the respondent Corporation and
\n Mr. G.L.Gupta had taken voluntary retirement and in his
\nplace Mr.    Prakash Mehta came as General Manager (TPL) E
\n& C. After taking of the charge, Mr.        Prakash Mehta
\nstarted harassing the petitioner and reopened old issue
\nof the year 1997 pertaining to the bank guarantees
\nbearing nos. 173\/1 and 169\/1. Mr. Prakash Mehta sent a
\nletter    on 16.5.2000 stating therein that the bank
\nguarantees which were submitted by the petitioner were
\nfake.    On the basis of the intimation received from the
\nState Bank of Saurashtra, Kalol branch, the respondent
\nCorporation    had already been informed by the bank
\nregarding the said two bank guarantees in the year 1998
\nitselfand therefore, there was no reason for the bank
\nto inform the respondent Corporation again.    The letter
\nof the bank dated 5.4.2000 shows tht thebank had already
\nintimted by telegrams and letters to the respondent
\nCorporation.    Thus, the respondent Corporation was aware
\nof the said issue and that issue was already resolved and
\nmore than 80 contracts were awarded by the respondent
\nCorporation to the petitioner and those contracts were
\ncompleted by the petitioner to the satisfaction of the
\nCorporation.    Therefore, issuance of the said letter was
\ntotally out of consideration and unnecessary and only
\nwith view to harass the petitioner and with a malafide
\nobject and to extort money from the petitioner.        Mr.
\nPrakash Mehta asked the petitioner to give an amount of
\nRs.    7 lacs for obliging the petitioner with         two
\ncontracts and not to initiate any proceedings or inquiry
\nregarding the above mentioned two bank guarantees.      As
\nthe petitioner had not committed any mistake or fault, it
\nwas the bonafide mistake on the part of the petitioner.
\nThe petitioner did not incline to give any illegal
\ngratification to Mr. Mehta. Hence, he filed a complaint
\nbefore CBI against Mr. Mehta and CBI had laid a trap and
\nMr.    Prakash Mehta was caught red handed while he was
\naccepting Rs.50,000\/- towards part payment of Rs.        7
\nlacs.    He was arrested and proceedings were initiated
\nagainst him. The petitioner replied the letter dated
\n16.5.2000 of Mr.      Prakash Mehta on 28th May, 2000.
\nThereafter, on 8.12.2000, a notice was issued by the
\nrespondent no.    3 asking the petitioner to show cause as
\nto why the respondent Corporation should not ban future
\nbusiness dealings with the petitioner. That show cause
\nnotice was replied by the petitioner through its advocate
\non 14.12.2000. The petitioner again sent a letter dated
\n5th January, 2001 to the Deputy General Manager and
\nInquiry Officer requesting him to give an opportunity of
\npersonal hearing by way of personal meeting. But no such
\npersonal hearing or meeting was given to the petitioner
\nand the impugned order was passed on 23.1.2001 by the
\nrespondent Corporation informing the petitioner that the
\n Corporation has decided to ban any fresh business dealing
\nwith the petitioner for a period of 10 years from the
\ndate of issue of the letter. The petitioner has filled
\nup the tender forms for two contracts. The bid for the
\nwork at Sr.     No.2 was opened on 27th January, 2000 and
\nthe price bid was to be opened on 24th April, 2000.    The
\npetitioner was directed by a letter dated 21st April,
\n2000 to remain present at the time of opening of the
\nprice bid.   On 24th April, 2000 the price bid was opened
\nand the respondent Corporation has given offer by a
\nletter dated 29th April, 2000. The petitioner accepted
\nthe counter offer made by the Corporation and sent
\nacceptance by a fax message dated 21st May, 2000. The
\npetitioner has given a notice dated 4.7.2000 to the
\nrespondent Corporation requesting to issue a letter of
\nintent to the petitioner but the respondent Corporation
\nhas not issued the letter of intent and nor has replied
\nto the sid notice. The petitioner therefore, filed a
\nwrit petition being SCA No.       7899 of 2000 which was
\ndismissed by this Court on 19th July, 2000 on the ground
\nthat no adverse decision has been taken against the
\npetitioner and hence the writ petition was premture and
\nliberty was granted to file a fresh petition, if any
\nadverse decision is taken. Another tender was issued by
\nthe respondent   Corporation.      The   petitioner also
\nsubmitted its tender on 4.4.2001. The said tender was
\nopened on the same day.       The petitioner’s tender was
\nfound 27% below the estimated rate of the respondent
\nCorporation, but the work of the tender was not awarded
\nto the petitioner. Another tender for construction of
\nfighting system was submitted by the petitioner on 13th
\nOctober, 2000 and that was also lowest 20% below the
\nestimated rate of the respondent Corporation.        Still
\nhowever, the aforesaid contract was not awarded to the
\npetitioner due to impugned order. One rate contract for
\nthe work of trunk feeder was submitted in April 2000, but
\nthe same has not been considered by the respondent
\nCorporation because of the impugned order. The above
\nsaid contracts are still not awarded to any person though
\nthe tender given by the petitioners is lowest, yet due to
\nimpugned order, the petitioner has not been awarded the
\nabove contracts. The petitioner filed Regular Civil Suit
\nno.31 of 2001 in the Court of Civil Judge (S.D.),
\nGandhinagar. It also filed application exh.         5 for
\ninterim injunction.    The learned Civil Judge (S.D.),
\nGandhinagar granted ad-interim injunction which was made
\nabsolute by an order dated 8th March, 2001.          Being
\naggrieved by the order of 8th March 2001 of the Civil
\nJudge (S.D.), Gandhinagar, the respondent Corporation
\nfiled Appeal from Order no. 30 of 2001 in the Court of
\nthe Assistant Judge, Ahmedabad (Rural) at Gandhinagar.
\n The learned Assistant Judge, Gandhinagar allowed Appeal
\nfrom Order no. 30 of 2001 by his order dated 31st July,
\n2001 and set aside the order dated 8th March, 2001 on the
\nground of jurisdiction       only.      According   to   the
\npetitioner, the learned Assistant Judge, has, without
\ngoing into the merits and details, allowed the appeal
\nfiled by the respondent Corporation on the ground that
\nthe cause of action has arisen within the jurisdiction of
\nthe Gandhinagar Court. Being aggrieved by the impugned
\norder    passed    by    the   respondent Corporation, the
\npetitioner has therefore, filed the present petition
\ninter alia on the ground that the impugned action of the
\nrespondent Corporation in black-listing the petitioner
\nfirm is prima facie bad, illegal and against well settled
\nprinciples of law and fair-play. A show cause notice was
\nissued    on    8.12.2000 and that was replied by the
\npetitioner on 14.12.2000.        By another letter     dated
\n5.1.2001, the petitioner requested the Deputy General
\nManager (MMT) Enquiry Officer to give an opportunity of
\npersonal hearing, but in absence of the opportunity of
\npersonal hearing in which the petitioner could be able to
\nexplain its case in detail, is against principles of
\nnatural justice, arbitrary, ultra vires, illegal and
\nviolative of Articles 14 and 19 of the Constitution of
\nIndia.    The incident took place in the year 1997 and the
\nrespondent Corporation had not taken action.      The State
\nBank of Saurashtra had already informed the respondent
\nCorporation in the year 1998. Fresh bank guarantees had
\nalready been furnished by the petitioner and the same
\nwere accepted by the respondent Corporation. The inquiry
\ninitiated by the Corporation and the impugned order
\nsuffers from the vice of delay, laches and acquiescence
\nand also hit by the principle of estoppel.         Once the
\nrespondent Corporation had accepted fresh bank gurantees,
\nthere was no reason for initiating the inquiry or taking
\nany action against the petitioner after lapse of three
\nyears and hence the impugned order is not sustainable in
\nthe eye of law.       Moreover, the impugned order is a
\nnon-speaking order and has been passed in mechanical
\nexercise of power. The inquiry against the petitioner
\nwas initiated with malafide motive by the General Manager
\nMr.    Prakash Mehta who had taken over the charge of the
\nsaid post and the petitioner has made a             specific
\nallegation against Mr.       Prakash Mehta. He demanded Rs.
\n7 lacs as illegal gratification and as the petitioner
\ncould not satisfy the demand, he specifically threatened
\nto black-list the petitioner. At the instance of the
\npetitioner, Mr.       Mehta was caught red handed while
\naccepting Rs.     50,000\/- as part payment towards the
\namount of Rs. 7 lacs. Hence, proceedings were initiated
\nagainst the petitioner at the instance of Mr. Prakash
\n Mehta. Thus, the action against the petitioner is with a
\nmalafide motive and deserves to be quashed and set aside.
\nThe impugned order is vindictive in nature just to take
\nrevenge against    the   petitioner.     The inquiry has
\nproceeded and the impugned order has been passed without
\nfollowing principles of natural justice and without
\nconsidering the case of the petitioner in its proper
\nperspective.    The whole action on the ground of bank
\nguarantees given by the petitioner is vague.     That was
\ndue to mistake on the part of the employee of the
\npetitioner and that was corrected by furnishing fresh
\nbank guarantees.     There was no intention on the part of
\nthe petitioner to commit any fraud or cheating the
\nrespondent Corporation.    The punishment of black-listing
\nis disproportionate to the allegations made against the
\npetitioner.   As the petitioner has worked for about 11
\nyears to the satisfaction of the Corporation and that
\namounts to stigma on the career of the petitioner firm.\n<\/p>\n
3.Affidavit-in-reply has been filed        on
\nbehalf   of    the   respondent   Corporation      wherein a
\npreliminary objection     has   been   raised      that   the
\nplaintiff-petitioner filed    application     exh.      5 for
\ninterim injunction in the civil suit.     The trial court
\ngranted ad-interim injunction against the respondents as
\nprayed for vide its order dated 2.2.2001. The respondent
\nCorporation therefore, preferred Appeal from Order no.30
\nof 2001 in the District Court, Ahmedabad (Rural) at
\nGandhinagar.    That appeal has been allowed and the
\ninterim order dated 8.3.2001 of the trial court has been
\ndirected to be vacated. However, the respondents filed a
\ncaveat in Revision Application in this Court which the
\npetitioner could have filed against the order dated 31st
\nJuly, 2001 of the District Court. The petitioner has not
\nfiled any Revision Application till this date in this
\nCourt.   When the petitioner failed to obtain interim
\nrelief in the pending suit, it has filed this petition
\nwhich is an abuse of process of Court. The petition was
\nfiled on 7.8.2001 challenging the order dated 23rd
\nJanuary, 2001.     As such, the petition is liable to be
\ndismissed on the ground of undue delay and laches and
\nthis petition has been filed when the suit was already
\npending in the trial court. It is an uncontroverted fact
\nand there is no attempt on the part of the petitioner to
\ncontrovert that two bank guarantee nos. 173\/1 for Rs.
\n2,38,780\/- and 169\/1 for Rs.3,41,743\/- were forged and
\nfake.   It is asserted in the petition that some mistake
\nwas found by ONGC regarding the said bank guarantees and
\nadmitted to explain the forgery as mistake or lapse
\ncommitted by the employee of the petitioner.          In the
\njudgment of the District Court, the act committed by the
\n respondent-petitioner was never considered to be legal
\nand fair and the petitioner has nowhere denied that the
\nabove said two bank guarantees produced by it were not
\nforged or fake. It was admitted that it happened due to
\nmistake of some of its employees. The respondent did not
\nproduce forged and fake bank guarantees as alleged by the
\nappellant. Describing the submission of forged or fake
\nbank guarantees as mistake by an employee, is a sheer
\nmisrepresentation. Another bank guarantee was also filed
\nwhich was a forged or fake bank guarantee. That fact has
\nbeen suppressed. There was no question of giving any
\npersonal hearing to the petitioner.        It was given a
\nnotice to explain and substanatiate genuineness and
\ncorrectness of the bank guarantees dated 30th December,
\n1996 and 21st February, 1997.    The show cause notice
\ndated 8.12.2000 was given to the petitioner as to why
\nbusiness dealing with the petitioner should not be
\nbanned.   The petitioner filed a reply dated 14.12.2000
\nthrough its advocate admitting that due to its employee,
\nthere was a mistake in furnishing the bank guarantees.
\nIn the reply, no personal hearing was sought for.    Even
\nin the letter dated 5.1.2001, the petitioner had not
\nsought for personal hearing but stated that it would like
\nto explain the facts which could be possible by personal
\ndiscussion.   Hence, there was no violation of principles
\nof natural justice. It is also stated that when the bank
\nguarantees were subsequently discovered forged and fake,
\nwere accepted by ONGC as the petitioner was not aware of
\ntheir forged and fake nature. Soon after the bank which
\nhas not issued the bank guarantees confirmed that the
\nbank guarantees were forged, action was taken against the
\npetitioner.   Furnishing of    forged    and  fake   bank
\nguarantees even by mistake of employee which in reality
\nis beyond anybody’s imagination, cannot provide any
\nexcuse to the petitioner.      The impugned order has not
\nbeen passed by Mr. Prakash Mehta.     The impugned order
\nhas been passed to protect the interest of ONGC and has
\nnothing to do with what might have transpired between the
\npetitioner and Mr.    Prakash Mehta.      The action was
\ninitiated on the ground that the bank guarantees which
\nwere given by the petitioner were fake.    By the letter
\ndated 16.5.2000, the petitioner was informed that State
\nBank of Saurashtra had intimated that the said bank
\nguarantees were not issued by the said bank.          The
\npetitioner’s explanation was sought about genuineness and
\ncorrectness of the said bank guarantees. From the reply
\ndated 28th May, 2000 it appears that the petitioner knew
\nthat its explanation was not sought merely with reference
\nto the fakeness of any bank guarantee. Even in the show
\ncause notice dated 8.12.2000, it was specifically pointed
\nout that it was found that the bank guarantees were fake
\n and not issued by the State Bank of Saurashtra.       The
\nfacts mentioned in the show cause notice as well as the
\ncontents of the petitioner’s reply were considered and
\nthen the impugned order has been passed as mentioned
\ntherein. The impugned order is not arbitrarily passed as
\na result of non-application of mind or         based   on
\nextraneous or irrelevant considerations made in disregard
\nof any irrelevant considerations, biased or violative of
\nArticles 14 and 19 of the Constitution of India.\n<\/p>\n
4.A further affidavit in reply has also
\nbeen filed by the respondents regarding the question of
\nbias against the petitioner as argued on 24th August,
\n2001.     The allegations of the petitioner that the
\nimpugned order was vindictive in nature or to take
\nrevenge against the petitioner complaining the ACB about
\nthe demand of illegal gratification by Mr. Prakash Mehta
\nare denied. Mr.      Prakash Mehta, General Manager on
\ninformation from the State Bank of Saurashtra on 28th
\nMarch, 2000 called for information on and passed some
\norder on 13.4.2000 for inquiry in the matter and he found
\nthat on expiry of bank guarantees, a letter was written
\nto the contractor on 2.6.1998 extending the validity of
\nthe   bank    guarantee   dated 19.8.1999 to which the
\npetitioner did not respond. Another letter was written
\nto the contractor\/petitioner on 3.7.1998 with a copy of
\nthe letter of the Branch Manager, State          Bank   of
\nSaurashtra asking the contractor to extend the bank
\nguarantee by 10.7.1998 and warning the contractor that
\notherwise ONGC will be compelled to ask the bank to
\nencash the bank guarantee. In case of bank guarantee
\nno.173-1,    a letter was sent to the contractor on
\n10.7.1998 asking it to extend the validity of the bank
\nguarantee dated 10.4.1997, otherwise, ONGC would be
\ncompelled to ask the bank to encash the above bank
\nguarantee.    In July and August, 1998, ONGC official came
\nto know that these bank guarantees were fraudulent.      A
\nreport was submitted on 26th April, 2000 recommending
\nsuitable action against the petitioner.     Mr.    Prakash
\nMehta submitted a proposal to write a letter to the
\npetitioner according to the draft submitted and sought
\nconfirmation whether ONGC was justified in keeping the
\nbid of the petitioner in abeyance in various tenders.
\nThe communication had already taken place prior to the
\narrest of Mr. Prakash Mehta on 11.8.2000. In fact, on
\n11.8.2000, Mr.     Prakash Mehta had directed to process
\nbanning of case against the petitioner and his arrest was
\nmade lateron. The contentions taken by the petitioner in
\nits advocate’s letter dated 14.12.2000 were denied that
\nthe committee was formed as alleged to resolve the issue
\nof bank guarantee. Mr. G.L.Gupta, General Manager has
\n retired and it was confirmed by Mr.       K.C.Arora. Mr.
\nG.C.   Gupta, Deputy    S[uperintending   Engineer,    now
\nSuperintending Engineer and Mr. Satishkumar, Executive
\nEngineer (C and M) now Deputy Superintending Engineer.\n<\/p>\n
5.Heard the learned Senior advocates for
\nthe parties and perused the relevant papers on record.\n<\/p>\n
6.The contention of     the   learned   Sr.\nAdvocate Mr.    Y.N.Oza for the petitioner is that the\n<\/pre>\n
impugned order of black-listing the petitioner affects
\nthe civil rights of the petitioner and that order can
\nonly be passed after giving an opportunity of making a
\nrepresentation   or   explanation   to   show cause and
\nopportunity of personal hearing is afforded.  Otherwise,
\nit will vitiate and will be in breach of principles of
\nnatural justice. He relied on the following case laws.\n<\/p>\n
1. M\/s. Erusian Equipment and Chemicals Ltd. vs. State of
\nWest Bengal and<\/a> another reported in AIR 1975, SC, 266.
\nThe relevant portion reads as under:\n<\/p>\n
 “14.   The State can enter into contract with any
\n         person it chooses.    No person has a fundamental
\n         right to insist that the Government must enter
\n         into a contract with him. A citizen has a right
\n         to earn livelihood and to pursue any trade.     A
\n         citizen has a right to claim equal treatment to
\n         enter into a contract which may be proper,
\n         necessary and essential to his lawful calling.\n<\/p>\n
 15.The blacklisting order does not pertain
\n        to any particular contract.      The blacklisting
\n        order involves civil consequences.   It casts a
\n        slur.   It creates a barrier between the persons
\n        blacklisted and the Government in the matter of
\n        transactions. The blacklists are “instruments of
\n        coercion.”\n<\/p>\n
 20.Blacklisting has the effect of preventing
\n        a person from the privilege and advantage of
\n        entering into a lawful relationship with the
\n        Government for the purposes of gains. The fact
\n        that a disability is created by the order of
\n        blacklisting    indicates   that   the   relevant
\n        authority is to have an objective satisfaction.
\n        Fundamentals of fair play require that the person
\n        concerned should be given an opportunity to
\n        represent his case before he is put on the
\n        blacklist.”\n<\/p>\n
  2.Joseph Vilangandan vs. The Executive Engineer
\n(P.W.D.), Ernakulam and others<\/a> reported in AIR 1978,    SC\n<\/p>\n
930. The relevant portion reads as under:\n<\/p>\n
“18.     This being the position, the rule in
\n         Erusian Equipment’s case (ibid) (AIR 1975 SC 266)
\n         will be   attracted   with full force.      While
\n         conceding that the State can enter into contract
\n         with any person it chooses and no person has a
\n         fundamental right to insist that the Government
\n         must enter into a contract with him, this Court
\n         observed (in the said case) ( at page 269):\n<\/p>\n
“black-listing has the effect of preventing a
\n       person from the privilege and advantrage of
\n       entering   into    lawful relationship with the
\n       Government for purposes of gains. The fact that
\n       a   disability    is   created by the order of
\n       blacklisting    indicates   that  the    relevant
\n       authority is to have an objective satisfaction.
\n       Fundamentals of fair-play require that the person
\n       concerned should be given an opportunity to
\n       represent his case before he is put on the
\n       black-list.”\n<\/p>\n
3.Raghunath Thakur vs. State of Bihar and others
\nreported in AIR 1989, SC, 620. It is held as under:\n<\/p>\n
“4.    Undisputably, no notice had been given to
\n         the appellant of the proposal of blacklisting the
\n         appellant.    It was contended on behalf of the
\n         State Government that there was no requirement in
\n         the rule of giving any prior notice before
\n         blacklisting any person.     In so far as the
\n         contention    that  there   is   no   requirement
\n         specifically of giving any notice is concerned,
\n         the respondent is right. But it is an implied
\n         principle of the rule of law that any order
\n         having civil consequences should be passed only
\n         after    following  the   principles of natural
\n         justice. It has to be realised that blacklisting
\n         any person in respect of business ventures has
\n         civil consequences for the future business of the
\n         person concerned in any event. Even if the rules
\n         do not express so, it is an elementary principle
\n         of natural justice that parties affected by any
\n         order should have right of being heard and making
\n         representations against the order. In that view
\n         of the matter, the last portion of the order in
\n         so    far as it directs black-listing of the
\n         appellant in respect of future contracts, cannot
\n           be sustained in law……”\n<\/p>\n
4.M\/s. Southern Painters vs. Fertilizers
\nand Chemicals Travencore Ltd. and<\/a> another reported in AIR
\n1994, SC, 1277 in which rule laid down in AIR 1989, SC
\n620 has been relied on. The relevant portion of the said
\njudgment reads as under:\n<\/p>\n
 “8.    Again in Raghunath Thakur vs. State of Bihar
\n          (1989) 1 SCC 229 at 230 :(AIR 1989 SC 620      para\n<\/p>\n
          4), this Court observed :\n<\/p>\n
 “Indisputably, no notice had been given to the
\n        appellant of the proposal of blacklisting the
\n        appellant. It was contended on behalf of the
\n        State Government that there was no requirement in
\n        the rule of giving any prior notice before
\n        blacklisting any person.       Insofar    as   the
\n        contention   that   there   is   no    requirement
\n        specifically of giving any notice is concerned,
\n        the respondent is right.     But it is an implied
\n        principle of the rule of law that any order
\n        having civil consequences should be passed only
\n        after following theprinciples of natural justice.
\n        It has to be realised that blacklisting any
\n        person in respect of business ventures has civil
\n        consequence for the future business of the person
\n        concerned in any event. Even if the rules do not
\n        express so, it is an elementary principle of
\n        natural justice that parties affected by any
\n        order should have right of being heard and making
\n        representation against the order.”\n<\/p>\n
 9.    The deletion of the appellant’s name from the
\n          list of approved contractors on the ground that
\n          there were some vigilance report against it,
\n          could only be done consistent with and after the
\n          compliance of the principles of natural justice.
\n          That not having been done, it requires to be held
\n          that withholding of the tender form from the
\n          appellant was not justified. It our opinion, the
\n          High Court was not justified in dismissing the
\n          writ petition.”\n<\/p>\n
5.Dandapani Roula vs. State of Orissa    reported   in
\nAIR 1986 Orissa, 220.\n<\/p>\n
 “4.     Law is well settled that nobody should be
\n          blacklisted without giving an opportunity of
\n          being heard.    An order of blacklisting a person
\n          results in civil consequences.   It affects the
\n          reputation of the person blacklisted not only in
\n         his dealings with the Government but in his
\n         dealing with    private firm.    It affects his
\n         business prospects. These principles have been
\n         enunciated in the decisions reported in (1971) 1
\n         Cut WR 147 (Puranchandra Das vs.     Director of
\n         Public Instruction, Orissa) AIR 1975 SC, 266
\n         (Erusian Equipment and Chemicals Ltd. vs. State
\n         of West Bengal) and AIR<\/a> 19789 SC 930 (Joseph
\n         Vilangandan vs.       Executive  Engineer (PWD),
\n         Ernakulam.)<\/a>”\n<\/p>\n
7.On the other hand, learned Senior Counsel
\nMr.   S.B.Vakil for the respondents      contended    that
\naffording an opportunity of being heard before passing
\nthe order of punishment or an order adversely affecting a
\nperson is not an absolute rule of law.      Observance of
\nprinciples of natural justice depends on various factors
\ni.e. when all the facts of misconduct are admitted by
\nthe accused\/delinquent\/defaultor the facts of charge are
\nnot disputed, then only one conclusion is possible and
\npermissible.   An opportunity of being heard to the
\npetitioner concerned is not required to be given.     Even
\nsome time an opportunity of representation\/explanation to
\nany show cause notice is not required to be given to the
\nperson concerned where some direction was given for doing
\na particular act and that direction has not been followed
\nor complied with or if where an order in violation of
\nprinciples of natural justice is set aside, it restores
\nother illegal order. Reliance has been placed on the
\nfollowing judgments.\n<\/p>\n
1.F.N.Roy s. Collector of Customs, Calcutta      and
\nothers reported in AIR 1957, SC, 648.\n<\/p>\n
M\/s. Shrikrishnadas Tikara s. State of M.P. and others
\nreported in AIR 1977, SC, 1691.  The relevant portion
\nreads as under:\n<\/p>\n
 “8.   Nor are we impressed with the contention
\n         that natural justice has been breached. Here is
\n         a case where admittedly, the conditions of the
\n         contract had been broken and the obligations
\n         under the rules had been violated. The reply to
\n         the show cause notice has set out all that need
\n         be set out.    The facts are     simple.      The
\n         explanation is non-exculpatory. The only plea is
\n         for condonation.    The lessee having been heard,
\n         natural justice has been complied with. The fact
\n         that in the second notice by the Collector a
\n         personal hearing was offered, does not mean that
\n        the failure prsonally to hear the petitioner was
\n        a contravention of the cannon of natural justice
\n        in the first case. It is well established that
\n        the principles of natural justice cannot be
\n        petrified or fitted into rigid moulds. They are
\n        flexible and turn on the facts and circumstances
\n        of each case. Has there been any unfair deal by
\n        the authority ? Has the party affected been hit
\n        below the belt ? Has he had a just opportunity
\n        to state his plea ?       Having regard to the
\n        features of the present case, we are hardly
\n        satisfied that the order is bad on this score.”\n<\/p>\n
2.State Bank of Patiala s. Mahendra Kumar Singhal
\nreported in 1994 Supplement (2) Supreme Court Cases, 463.
\nThe relevant paragraph reads as under:\n<\/p>\n
 “3.   No rule has been brought to our attention
\n        which requires the appellate authority to grant a
\n        personal hearing. The rule of natural justice
\n        does not necessarily in all cases confer a right
\n        of audience at the appellate stage. That is what
\n        this Court observed in F.N.Roy vs. Collector of
\n        Customs, Calcutta. We, the<\/a>refore, think that the
\n        impugned order is not valid. Our attention was,
\n        however, drawn to the decision in Mohinder Singh
\n        Gill vs.    Chief Election Commissioner, New Delhi<\/a>
\n        wherein obseration is made in regard to the right
\n        of hearing.     But that was not a caseof        a
\n        departmental inquiry, it was one emanating from
\n        Article 324 of the Constitution.    In our view,
\n        therefore, those observations are not pertinent
\n        to the facts of this case.”\n<\/p>\n
3.Cantonment   Board   and  another   vs.
\nMohanlal and another reported in (1996) 2 Supreme Court
\ncases, 23 in which the Supreme Court has observed as
\nunder:\n<\/p>\n
 “2.   The only question in this case is whether
\n        the view taken by the High Court is good in law.
\n        It is seen that the respondent in his reply had
\n        admitted that they constructed, as pointed out by
\n        the Cantonment Board in      its   notice   dated
\n        13.9.1974, and the previous notice.       But he
\n        stated that he had done it bona fide and as he
\n        would not demolish it but requested the authority
\n        to reconsider the matter and withdraw the notice.
\n        In other words, he admitted that he had carried
\n        on illegal construction without compliance with
\n          law.   So the question is whether enquiry in that
\n         behalf is required to be conducted.   We are of
\n         the considered view that the High Court was not
\n         right in its conclusion that an indepenmdent
\n         enquiry requires to be held after the notice was
\n         issued and the reply thereof was given by the
\n         respondent.”\n<\/p>\n
4.Shiv Sagar Tiwari vs. Union of India and
\nothers<\/a> reported in (1997) 1 Supreme Court cases, 444. In
\nthe said ruling, the Supreme Court has observed as under:\n<\/p>\n
 “May   it also be stated that it is well settled
\n         that requirements of natural justice can be
\n         moulted insuch a way as to take care of two basic
\n         facts of this principle : (1) to make known the
\n         nature of accusation; and (2) to give opportunity
\n         to state the case, as accepted by this Court in
\n         Hira Nath Mishra vs. Principal, Rajendra Medical
\n         College. In Subhas Chandra<\/a> case it has been even
\n         held that no hearing is required to be given to
\n         the candidates before cancelling the examination
\n         where mass-copying was indulged, if a case for
\n         the same was otherwise made out. Present is also
\n         a case of large-scale out of turn allotments, and
\n         so, on principle no hearing at all might have
\n         been given. But we did not go to that extent and
\n         gave even personal hearing to many among those
\n         who chose to appear pursuant to the notice
\n         published in the newspaper, which alone was
\n         feasible.   All the allottes     liable   to   be
\n         adversely affected being in Delhi and being well
\n         educated, newspaper publication was definitely
\n         sufficient to enable them to know that they must
\n         have been informed.     Indeed,   the   employees
\n         concerned were knowing much aliunde also.\n<\/p>\n
 49.Natural justice is after all “no unruly
\n        horse,     no     lurking     land    mine”    as
\n        characteristically stated by Krishna Iyer, J in
\n        Chairman, Board of Mining Examination and Chief
\n        Inspector of Mines vs. Ramjee.     Its<\/a> unnatural
\n        expansion without reference to these realities
\n        can be “exasperating” as observed by the learned
\n        Judge.   It is also worthwhile to remember, as
\n        stated in para 24 of S.L. Kapoor vs.     Jagmohan<\/a>
\n        that where on admitted or indisputable facts only
\n        one conclusion is possible, the Court may not
\n        compel the obserance of natural justice, as it
\n        would be futile to do so. The real point for
\n        determination for us has been       whether   the
\n         incumbent got the allotment as per his turn or he
\n        jumped the queue, on the face of our rejection to
\n        depart   from    the  existing policy requiring
\n        eviction of those also included in Categories I
\n        and X.    This we got examined well and have felt
\n        satisfied at the work undertaken by the Committee
\n        in this regard.”\n<\/p>\n
5.Dharmarthmakara    Raibahadue    Arcot  Ramaswamy
\nMudaliar Educational   Institution    vs.     Educational
\nAppellate Tribunal and<\/a> another reported in (1999) 7
\nSupreme Court cases, 332. The Supreme Court has observed
\nas under:\n<\/p>\n
 “…..In view of this, it cannot be said on the
\n        facts and circumstances of this case that there
\n        was any violation of any principle of natural
\n        justice as sufficient opportunity was given to
\n        her. The said matrix of facts reel, on the
\n        contrary, which is also not in dispute that
\n        respondent no.     2 inspite     of  her   earlier
\n        application for leave for seeking permission for
\n        doing Ph.D. course which is for three years
\n        being rejected, she inspite of this under the
\n        garb of leave for doing M.Phil course for one
\n        year and on such leave, without seeking any fresh
\n        permission   from    the   appellant got herself
\n        registered for Ph.D.     course.     This   apart,
\n        admittedly, she even violated the conditions of
\n        her leave for which she filed an affidavit i.e.
\n        if she does not get admission in M.Phil course by
\n        31.7.1978, she would rejoin the service which she
\n        did not do.    The facts speak for themselves. It
\n        is also clear from the record that the appellant
\n        gave opportunity to her.       On these facts, the
\n        order of termination passed by the appellant
\n        cannot be said to be illegal. We find that both
\n        the Tribunal and the High Court did not revert
\n        (sic advert to) or scrutinise these basic facts
\n        which are so apparent and revealing that no other
\n        inference is possible and that is why we do not
\n        find   on   record    even   from her reply any
\n        sustainable defence taken by her.\n<\/p>\n
 8.The contention of the learned counsel for the
\n        respondent is confined that there was no enquiry
\n        in terms of section 6 of the said Act. There is
\n        no submission of any defence on merit. Even
\n        before us when we granted learned counsel an
\n        opportunity to give any prima facie or plausible
\n       explanations on record to defend her actions,
\n       nothing could be placed before us. Giving of
\n       opportunity or an enquiry of course is a check
\n       and balance concept that no one’s right be taken
\n       away without giving him\/her      opportunity  or
\n       without enquiry in a given case or where the
\n       statute requires. But this cannot be in a case
\n       where allegation and charges are admitted and no
\n       possible defence is placed before the authority
\n       concerned.   What enquiry is to be made when one
\n       admits violations ? When she admitted she did
\n       not join M.Phil course, she did not report back
\n       to her duty which is against her condition of
\n       leave and contrary to her affidavit which is
\n       against her condition of leave and contrary to
\n       her affdiavit which is the charge, what enquiry
\n       was to be made ? In a case where the facts are
\n       almost admitted, the case reveals itself and is
\n       apparent on the face of the record, and inspite
\n       of   opportunity no worthwhile explanation is
\n       forthcoming as in the present case, it would not
\n       be a fit case to interfere with the termination
\n       order.”\n<\/p>\n
6.K.L.Tripathi vs. State Bank of India and
\nothers<\/a> reported in 1984(1) SCC,43. Relevant portion is
\nreproduced as under:\n<\/p>\n
“31.Wade in his Administrative Law, Fifth
\n       Edication at pages 472-475 has observed that it
\n       is not possible to lay down rigid rules as to
\n       when the principles of natural justice are to
\n       apply:   nor as to their scope and        extent.
\n       Everything depends on the subject matter, the
\n       application of principles of natural justice,
\n       resting as it does upon statutory implication,
\n       must always be in conformithy with the scheme of
\n       the Act and with the subject matter of the case.
\n       In the application of the concept of fair play
\n       there must be real flexibility. There must also
\n       have been some real prejudice to the complainant;
\n       there is no such thing as a merely technical
\n       infringement of    natural    justice.        The
\n       requirements of natural justice must depend on
\n       the facts and the circumstances of the case, the
\n       nature of the inquiry, the rules under which the
\n       tribunal is acting, the subject matter to be
\n       dealt with and so forth.\n<\/p>\n
32.The basic concept is fair play in   action
\n          administrative judicial or quasi-judicial. The
\n         concept of fair play in action must depend upon
\n         the particular lis, if there be any, between the
\n         parties. If the credibility of a person who has
\n         testified or given some information is in doubt,
\n         or if the version of the statement of the person
\n         who has testified, is, in dispute, right of
\n         cross-examination must inevitable form part of
\n         fair play in action but where there is no lis
\n         regarding the facts but certain explanation of
\n         the circumstances there is no requirement of
\n         cross-examination to be fulfilled to justify fair
\n         play in action. When on the question of facts
\n         there was no dispute, no real prejudice has been
\n         caused to a party aggrieved by an order, by
\n         absence    of    any    formal    opportunity  of
\n         cross-examination per se does not invalidate or
\n         vitiate the decision arrived at fairly. This is
\n         more so when the party against whom an order has
\n         been passed does not dispute the facts and does
\n         not demand to test the veracity of the version or
\n         the credibility of the statement.<\/p>\n
\n\n\n34.The    principles of natural justice will,\n         therefore,     depend     upon     the    facts     and\n<\/pre>\n
         circumstances of each particular case. We have
\n         set out hereinbefore the actual             facts   and
\n         circumstances of the case.           The appellant was
\n         associated with the preliminary investigation
\n         that was conducted against him. He does not deny
\n         or dispute     that.      Information and materials
\n         undoubtedly were gathered not in his presence but
\n         whatever information was there and             gathered
\n         namely,    the    version      of   the persons, the
\n         particular entries which required examination
\n         were shown     to    him.       He was conveyed the
\n         information given and his explanation was asked
\n         for. He participated in that investigation. He
\n         gave his explanation but he did not dispute any
\n         of the facts nor did he ask for any opportunity
\n         to call any evidence to rebut these facts.           He
\n         did ask for a personal hearing, as we have
\n         mentioned hereinbefore and he was given such
\n         opportunity of       personal      hearing.         His
\n         explanations were duly recorded.         He does not
\n         allege that his version has been improperly
\n         recorded nor did he question the veracity of the
\n         witnesses or the entries or the letters or
\n         documents shown to him upon which the charges
\n         were framed and upon which he was found guilty.
\n         Indeed it may be mentioned that he was really
\n        consulted   at   every   stage   of    preliminary
\n       investigation upon which the charges were based
\n       and upon which proposed action against him has
\n       been taken. In that view of the matter, we are
\n       of the opinion that it cannot be said that in
\n       conducting the enquiry or framing of the charges
\n       or arriving at the decision, the authorities
\n       concerned have acted in      violation    of   the
\n       principles of natural justice merely because the
\n       evidence was not recorded in his presence or that
\n       the materials, the gist of which was communicated
\n       to him, were not gathered in his presence. As we
\n       have set out hereinbefore, indeed he had accepted
\n       the factual basis of the allegations.     We have
\n       set out hereinbefore in extenso the portions
\n       where he had actually admitted the factual basis
\n       of these allegations against him, where he has
\n       not questioned the veracity of the witness or the
\n       facts or credibility of      the    witnesses   or
\n       credibility of the entries on records. Indeed he
\n       has given explanation, namely he was overworked,
\n       he had consulted his superiors and sought their
\n       guidance, his conduct has not actually, according
\n       to him caused any financial risk or damage to the
\n       bank concerned.    Therefore, in our opinion, in
\n       the manner in which the investigation was carried
\n       out as a result of which action has been taken
\n       against him cannot be condemned as bad being in
\n       violation of the principles of natural justice.
\n       Had he, however denied any of the facts or had
\n       questioned the credibility of the persons who had
\n       given information against him, then different
\n       considerations would have applied and in those
\n       circumstances, refusal to give an opportunity to
\n       cross-examine   the persons giving information
\n       against him or to lead evidence on his own part
\n       to rebut the facts would have been necessary and
\n       denial of such opportunity would have been fatal.
\n       But such is not the case here as we have
\n       mentioned hereinbefore.”\n<\/p>\n
7.Aligarh Muslim University and others Vs.
\nMansoor Alikhan reported in (2000) 7 Supreme Court cases\n<\/p>\n
529. The relevant portion of the judgment reads as
\nunder:\n<\/p>\n
“23.Chinnappa Reddy, J in S.L. Kapoor case
\n       laid down two exceptions (at SCC p 395) namely,
\n       if upon admitted or indisputable facts only one
\n       conclusion was possible, then in such a case the
\n          principle that breach of natural justice was in
\n         itself prejudice would not apply.       In other
\n         words, if no other conclusion was possible on
\n         admitted   or   indisputable facts, it is not
\n         necessary to quash the order which was passed in
\n         violation of natural justice.     Of course, this
\n         being an exception, great care must be taken in
\n         applying this exception.\n<\/p>\n
24.The principle that in addition to breach
\n       of natural justice, prejudice must also be proved
\n       has been   developed   in   several cases.     In
\n       K.L.Tripathi Vs. State Bank of India Sabyasachi
\n       Mukharji, J (as he then was) also laid down the
\n       principle that not mere violation of natural
\n       justice   be   de facto prejudice (other than
\n       non-issue of notice) had to be proved.    It was
\n       observed, quoting Wade’s Administrative Law (5th
\n       Edication, pp 472-75) as follows:    (SCC p 58,
\n       para 31).\n<\/p>\n
“It is not possible to lay down rigid rules as to
\n       when the principles of natural justice are to
\n       apply, nor as to their scope and extent…There
\n       must also have been some real prejudice to the
\n       complainant; there is no such thing as a merely
\n       technical infringement of natural justice.  The
\n       requirements of natural justice must depend on
\n       the facts and circumstances of the case, the
\n       nature of inquiry, the rules under which the
\n       tribunal is acting, the subject matter to be
\n       dealt with, and so forth.”\n<\/p>\n
Since    then, this Court has consistently applied
\n         the principles of prejudice in several cases.
\n         The above ruling and various other rulings taking
\n         the same view have been exhaustively referred to
\n         in State Bank of Patiala vs.    S.K.Sharma.    In<\/a>
\n         that case, the principle of “prejudice” has been
\n         further elaborated. The same principle has been
\n         reiterated again in Rajendra Singh vs. State of
\n         M.P.”\n<\/p>\n
8.M.C.Mehta vs. Union of India and others<\/a> (1999) 6
\nSCC 237. The relevant portion is extracted as under:\n<\/p>\n
“The    above case is a clear authority for the
\n         proposition that it is not always necessary for
\n         the court to strike down an order merely because
\n         the order has been passed against the petitioner
\n         in breach of natural justice.       The court can
\n         under Articles 32 or 226 refuse to exercise its
\n        discretion of striking down the order if such
\n        striking down will result in restoration of
\n        another order passed earlier in favour of the
\n        petitioner and    against   opposite   party   in
\n        violation of the principles of natural justice or
\n        is otherwise not in accordance with law.”\n<\/p>\n
8.I have considered the rival contentions
\nraised by the learned      counsel   for   the   parties.
\nInitially, the trend of decisions of the Supreme Court
\nwas that rule of natural justice was not required to be
\nstictly followed.    Thereafter, principles of natural
\njustice by affording an opportunity of hearing to make a
\nrepresentation\/explanation for a show cause notice was
\nmade mandatory.    Lateron, personal hearing was also
\nadded, but the trend has been moulded by recent decisions
\nof the Supreme Court that observance of principles of
\nnatural justice depends upon the facts and circumstances
\nof each case in which various factors may require
\nmandatory compliance of principles of natural justice not
\nnecessary. Even in some cases, show cause notice and
\ninquiry is not required to be given for compliance of
\nprinciples of natural justice.      Moreover,   for   the
\navailability of natural of principle justice if rule is
\nbreached is not necessary and where the facts are
\nadmitted and\/or not in dispute and only one conclusion is
\npossible.\n<\/p>\n
9.Now, let us examine on the facts of the
\npresent case, whether the petitioner was entitled for
\npersonal hearing to follow the principles of natural
\njustice and what prejudice was caused to it in absence of
\nthe opportunity of personal hearing being not given.   It
\nis not disputed that the respondent Corporation issued a
\nshow cause notice dated 8.12.2000 to the petitioner as to
\nwhy ONGC should not ban future business dealings with the
\npetitioner, requiring written reply with documents in
\nsupport thereof within 15 days. It is also not disputed
\nthat the petitioner has sent the reply dated 14.12.2000
\nthrough its advocate to the respondent Corporation. It
\nis also not in disputed that the petitioner sent a letter
\nto the respondent Corporation requesting for personal
\nmeeting to present certain facts for personal discussion.
\nThe petitioner was not allowed personal meeting as
\nrequested by it.The respondent Corporation passed the
\nimpugned order dated 23.1.2001 banning fresh business
\ndealing of the petitioner with respondent Corporation for
\na period of 10 years. It is also not disputed that an
\nopportunity to represent its case\/explain its conduct was
\n affrorded to the petitioner and in fact that opportunity
\nof explaining its conduct has been availed by sending
\nreply dated 14.12.2000 through its advocate. Now, the
\nquestion which remains for consideration is as to whether
\nnot providing personal hearing by way of personal meeting
\nwould amount to violation of principle of natural justice
\nand whether non-providing of personal hearing has caused
\nany prejudice to it ? If it has not caused any prejudice
\nto the petitioner, then it would not be entitled for
\npersonal hearing. Para-4 of the show cause notice dated
\n8.12.2000 describes as under :\n<\/p>\n
 “4.   Whereas on inquiry, it was found that Bank
\n         guarantees No. 169-I and 173-I referred above,
\n         were fake and not issued by State Bank of
\n         Saurashtra. These facts were communicated to you
\n         vide letter No.     BDA\/E&C\/TPL\/Conf\/2000  dated
\n         16.5.2000 (copy enclosed at Annexure -4).”\n<\/p>\n
As per the reply dated 14.12.2000 to the show cause
\nnotice, the petitioner stated “Due to the employees,
\nthere was a mistake in the bank guarantee which was
\nrectified by furnishing a new bank guarantee no. 82 for
\nRs.3,41,743\/- and no.101\/98 for Rs. 2,38,780\/- in lieu
\nof the old bank guarantee. ” Thus, it is not in dispute
\nthat two fake bank guarantees were furnished by the
\npetitioner. Can it be acceptable to this Court that an
\nemployee   submitted   two   fake guarantees worth Rs.
\n5,80,000\/- without collusion or permission       of   the
\nemployer ?    What was the gain of the employee in
\nfurnishing two fake bank guarantees onbehalf of the
\nemployer ?   The answer is in the negative. It appears
\nfrom the allegations made in para-3 of the show cause
\nnotice dated 8.12.2000 that the petitioner had no account
\nin the State Bank of Saurashtra and submitted the bank
\nguarantee in Dena Bank, Kalol. The learned counsel for
\nthe petitioner has pointed out nothing as to what
\nprejudice was caused to the petitioner in absence of
\npersonal hearing nor anything has been averred in the
\npetition in that respect.      During   the   course   of
\narguments, the learned Sr.     advocate Mr. Oza for the
\npetitioner could not show as to what was the material or
\nargument to be produced or advanced in the arguments in
\nthe personal hearing by the petitioner and what was the
\nmaterial to be discussed in the personal meeting. Mere
\nraising a technical point that the petitioner was not
\ngiven personal hearing and without showing any prejudice
\nis not sufficient to hold that the act of the respondent
\nCorporation in not providing an opportunity of personal
\nhearing is in violation of principles of natural justice.
\nMoreover, on the facts not disputed, only one conclusion
\n is that the petitioner deliberately got submitted two
\nfake bank guarantees of total amount of Rs.   5,80,000\/-.
\nThus, I find no substance in the contention of the
\nlearned counsel for the petitioner that the petitioner
\nwas not afforded fair and proper opportunity of being
\nheard which violates the principles of natural justice.\n<\/p>\n
10.The second contention of the learned Sr.
\nAdvocate Mr. Oza for the petitioner is that the entire
\naction of the respondent Corporation for banning the
\nbusiness transations of the petitioner with ONGS is bias
\nand malafide, as a result, the impugned order is not
\nsustainable in the eye of law, inasmuch as Mr.    Prakash
\nMehta   took over the charge of General Manager on
\nretirement of one Mr. G.L.Gupta. Though the two fake
\nguarantees were filed due to mistake of some employee of
\nthe petitioner, the petitioner was permitted to replace
\nthem with fresh bank guarantees in the year 1998 and it
\nwas known to the officers of ONGC. The mistake of the
\npetitioner was condoned by the respondent Corporation and
\nabout 80 contracts were given to the petitioner by the
\nrespondent Corporation, but Mr. Prakash Mehta inquired
\nabout issuance of fake bank guarantees from the bank vide
\nletter dated 29th March, 2000 and the bank replied by its
\nletter dated 5.4.2000 that the matter regarding bank
\nguarantees, the bank has already informed by several
\nletters and telegrams that two bank guarantees afforded
\nwere forged and fake. Mr. Prakash Mehta required the
\npetitioner to explain and substantiate the genuineness
\nand correctness of the aforesaid two bank guarantees
\nwithin 15 days of the aforesaid two bank guarantees
\nwithin 15 days by its letter dated 16.5.2000.         The
\npetitioner filed its reply on 28th November, 2000. Mr.
\nPrakash Mehta demanded illegal gratification of Rs.     7
\nlacs for awarding the contracts to the petitioner and to
\nhush up the matter regarding fake bank guarantees,
\notherwise the petitioner would be blacklisted. As the
\npetitioner was not inclined to give illegal gratification
\nand hence Mr.      Prakash Mehta   waited   for   illegal
\ngratification till 11.8.2000. However, he was caught red
\nhanded in the trap by ACB while accpting Rs.50,000\/- as
\npart payment towards the amount of Rs. 7 lac. Thus, the
\nwhole action for banning the business of the petitioner
\nwas taken at the instance of Mr.        Prakash Mehta who
\ndemanded the illegal gratification of Rs. 7 lacs and is
\nmalafide and bias.\n<\/p>\n
As against this argument of Mr.      Oza,\nlearned Sr.   Advocate Mr.     Vakil for the respondent\n<\/pre>\n
Corporation contended that the allegations of bias and
\nmalafide have to be pleaded and person concerned against
\n whom the allegations of bias and malafide are made must
\nbe impleaded so that real facts regarding bias and
\nmalafide could be brought to the notice of the Court.
\nThere must be real “likelihood of bias” or “reasonable
\nsuspicion of “bias”. In the present case, there is no
\nreal ” likelihood or bias or “reasonable suspicion of
\nbias” at all. Mere bald allegations of bias or malafide
\nare not sufficient. Moreover, the show cause notice was
\nissued by another officer and it cannot be said that the
\naction   of   the   respondent Corporation against the
\npetitioner was bias and malafide at the instance of Mr.
\nPrakash Mehta as he was placed under suspension. The
\nlearned counsel for the respondent relied        on  the
\nfollowing decisions of the Supreme Court.\n<\/p>\n
1.I.K.Mishra vs.      Union of India and others<\/a>
\nreported in (1997) 6 Supreme Court Cases, 228.  It      is
\nobserved as under:\n<\/p>\n
 “8.Lastly, it was urged that the order
\n        compulsorily retiring the appelant was a malafide
\n        order as the same was passed at the instance of
\n        Shri Manazure Muastafa     Siddiqui,    Accountant
\n        General,   M.P., who bore grudge against the
\n        appellant. This argument is being noted only to
\n        be rejected.    It may be noticed that the record
\n        before us does not show that Shri Manazure
\n        Muastafa Siddiqui was party to the suit. In fact
\n        he was not impleaded by name in the suit.
\n        Further, the allegations against Shri Siddiqui
\n        were totally vague.     No inference of malafide
\n        couldbe drawn from such allegations.       In the
\n        absence of full facts and particulars in the
\n        plaint in respect of allegation of malafide the
\n        order of compulsorily retiring the appellant
\n        cannot be held to be a malafide order.”\n<\/p>\n
2.State of West Bengal and others vs.
\nShivanand Pathak and others<\/a> reported in 1998(5) SCC, 513.
\nIt has been held as under:\n<\/p>\n
 “25.   Bias may be defined as a preconceived
\n         opinion or a predisposition or predetermination
\n         to decide a case or an issue in a particular
\n         manner, so much so that such predisposition does
\n         notleave the mind open to conviction. It is, in
\n         fact, a condition of mind, which sways judgments
\n         and renders the judge      unable   to  exercise
\n         impartiality in a particular case.\n<\/p>\n
 26. Bias   has   many   forms.   It may be pecuniary
\n          bias, personal bias, bias as to subject-matter in
\n         dispute, orpolicy bias etc. In the instant case,
\n         we are not concerned with any of these forms of
\n         bias.   We have to deal, as we shall presently
\n         see, a new form of bias, namely, bias on account
\n         of judicial obstinacy.\n<\/p>\n
 33.   Bias, as pointed out earlier, is a condition
\n         of mind and, therefore, it may not always be
\n         possible to furnish actual proof of bias.      But
\n         the courts for this reason, cannot be said to be
\n         in a crippled state.    There are many ways to
\n         discover bias; for example, by evaluating the
\n         facts and circumstances of the case or applying
\n         the   tests of “real likelihood of bias” or
\n         “reasonable suspicion of bias”.      de Smith in
\n         Judicial Review of Administratie Action, 1980
\n         Edn.pp.262m 264, has explained that “reasonable
\n         suspicion”   test    looks   mainly   to   outward
\n         appearances while “real likelihood” test focuses
\n         on    the   court’s    own   evaluation  of    the
\n         probabilities.”\n<\/p>\n
3.Utkal University vs.     Dr.    Nrusingha
\nCharan Sarangi and others others<\/a> reported in 1999(2) SCC,\n<\/p>\n
193. The relevant portion is quoted below:\n<\/p>\n
 “9.    The last contention of the first respondent
\n         which has been accepted by the High Court is that
\n         of bias on the part of one of the members of the
\n         Selection Committee.   The so called bias, as set
\n         out in the original petition, is that one of the
\n         experts was a member of an organisation which
\n         brought out a magazine of the Selection Committee
\n         was on the Editorial Board. Both the University
\n         as well as the selected candidate have pointed
\n         out that this fact was known to the first
\n         respondent throughout.   He did not, at any time,
\n         object to the composition of the        Selection
\n         Committee.   He objected only after the selection
\n         was over and he was not selected.     This would
\n         amount to waiver of such objection on the part of
\n         the first respondent.     Reliance is placed on a
\n         decision of this Court in G.Sarana (Dr.) Vs.
\n         Universityof Lucknow in which this Court found
\n         that despite the fact that the appellant knew all
\n         the relevant facts, he had voluntarily appeared
\n         before the Committee and taken a chance of having
\n         a faourable recommendation from it. Having done
\n         so, it was not open to him to turn round and
\n         question the constitution of the Committee. A
\n        similar view has been taken by this Court in the
\n        case of U.D.Lama vs. State of Sikkim SCC<\/a> at page\n<\/p>\n
        119.”\n<\/p>\n
11.I   have    carefully     considered   the
\ncontentions of the learned counsel for the parties. This
\nis a case in which lower rank officers of the respondent
\nCorporation on the information by the bank were knowing
\nthe fact of submission of fake and fraudulent bank
\nguarantees.    When higher officers of the respondent
\nCorporation came to know about the fact, not only a
\nreport was submitted a report for proper action against
\nthe petitioner, but also against those officers who were
\nknowing about fake and forged bank guarantees of the
\npetitioner, inasmuch as further affidavit-in-reply has
\nbeen filed by Mr.        Sanjay Ramanlal Trivedi,    Chief
\nEngineer (Construction and Maintenance) wherein he has
\nstated that he found three officers of oNGC in his
\nreport, responsible for not bringing the facts to the
\nnotice of ONGC. Hence, he submitted a report dated 26th
\nApril, 2000 recommending suitable action against the
\npetitioner. Mr. Prakash Mehta in his submission dated
\n5.5.2000 met the Group General Manager and submitted his
\nproposal to write a letter to the petitioner according
\ndraft submitted and sought confirmation whether ONGC was
\njustified in keeping the bid of the petitioner in
\nabeyance in various standards. By the letter dated 29th
\nMarch, 2000, it was inquired from the bank itself about
\nfake bank guarantees of the petitioner. The bank vide
\nits letter dated 5.4.2000 confirmed that the aforesaid
\nbank guarantees were fake and forged. Then Mr. Prakash
\nMehta required the petitioner by a letter dated 16.5.2000
\nto explain and      substantiate    the  genuineness   and
\ncorrectness of    the bank guarantee.      The petitioner
\nsubmitted its reply dated 28th May, 2000 stating therein
\nthat the petitioner was not aware of obtaining bank
\nguarantees by the officer in charge. But in the meeting
\nof the high ranking officers of ONGC, it was decided that
\nfresh   bank    guarantees should be furnished by the
\npetitioner.    Accordingly, fresh bank guarantees were
\nfurnished by the petitioner and they were accepted by the
\nrespondent ONGC. Mr. Prakash Mehta had already directed
\nto process the case against the petitioner on 11.8.2001
\nin the forenoon. The petitioner was required to give
\nfresh bank guarantees becauses the execution of work for
\nwhich fake and forged bank guarantees were submitted was
\nnot complete.     Hence, it was necessary for ONGC to
\nsafeguard its financial interest in the event of any
\nclaim arising in favour of ONGC on account of the
\n defective performance of the contract by the petitioner.
\nIn absence of finding of any authority or court of law,
\nit would be difficult to accept at this stage that Mr.
\nPrakash Mehta was caught red handed while accepting
\nillegal gratification of only Rs.      50,000\/- as part
\npayment towards demand of Rs.      7 lacs.     It is also
\npossible that the petitioner finding itself in hot water
\nat the instance of Mr. Prakash Mehta made arrangement
\nfor trapping Mr. Prakash Mehta. It is also not unusual
\nfor a person to place currency notes in the hand or
\npocket of other person and\/or in order to get other
\nperson trapped and arrested red handed. Traps are made
\nonly in order to get rid of any difficulty.           The
\npetitioner, in absence of any finding of the authority or
\ncourt of law, is not an exception. In the present case,
\nthe fact is not denied that fake and forged bank
\nguarantees were submitted by the petitioner firm. As
\nsoon as that fact came to the knowledge of high ranking
\nofficers of ONGC, the inquiry was initiaated.         The
\npetitioner was required to submit explnation and after
\nreceipt of the explanation, an order was passed for
\nprocessing the case against the petitioner.         After
\nfinding prima facie case against the petitioner, a show
\ncause notice was issued by another officer and not by
\nPrkash Mehta and after considering the allegations made
\nin the show cause notice and the explanation in the
\nreply, the competent authority has passed the impugned
\norder which is not vitiated or illegal on this score and
\nI do not find any susbtance in the contention of the
\nlearned counsel for the petitioner that the action
\nagainst the petitioner is malafide and bias at the
\ninstance of Mr. Prakash Mehta, and more particularly
\nwhen there is no allegation of malafide or bias against
\nthe officer who issued the show cause notice and the
\nofficer who has passed the impugned order.\n<\/p>\n
12.The next contention of      the   learned
\ncounsel   for the petitioner is that the respondent
\nCorporation has condoned the alleged misconduct against
\nthe petitioner and has waived its right to reopen the
\nchapter which has already been closed.    The respondent
\nONGC having known about two fake bank guarantees of the
\npetitioner permitted the petitioner to file fresh bank
\nguarantees.   The question of renewal of the aforesaid
\nbank guarantees was considered and condoned by the ONGC
\nin the meeting held in the first week of July, 1998,
\nseven highest officers of ONGC, namely :
\n(1) G.L.Gupt,a G.M.(T.P.L.)
\n(2) S.K.Sinha, C.E. (C & M)
\n(3) K.C.Arora, S.E. (C & M)
\n(4) G.C.Gupta, Dy. S.E.(E & M) now S.E.\n<\/p>\n
 (5) B.Kalikar, Dy. S.E. (C & M) now S.E.\n<\/p>\n
(6) Satish Kumar, E.E. (C & M) now S.E.\n<\/p>\n
(7)   Bharat   Parikh, Branch Manager,     State   Bank   of
\nSurashtra, Kalol Branch.\n<\/p>\n
13.The plea of the petitioner that it was a
\nbonfide mistake and the petitioner was not involved in
\nissuance of fake bank guarantees and they were permitted
\nby the respondent Corporation to replace by fresh bank
\nguarantees. Thus, the mistake of the petitioner was
\ncondoned. Thereafter the petitioner was awarded about 80
\ncontracts by ONGC.        Thus, ONGC waived right of taking
\naction against the petitione and hence no action can be
\ntaken against the petitioner after a period of two years.
\nI have examined this contention raised on behalf of the
\npetitioner and in my view, it is not tenable at all in
\nview of the fact that ONGC permitted the petitioner to
\nfile fresh bank guarantees for safegurding the financial
\ninterest of ONGC. The statement made in the reply dated
\n14.12.2000 in respect of the alleged meeting of seven
\nhigh ranking officers in which the plea of the petitioner
\nthat it was a bonafide mistake of the employee of the
\npetitioner and the petitioner was not at all involved in
\nthe misconduct was accepted and condoned has been denied
\nby the Chief Engineer in the further affidavit-in-reply
\nwhich has been filed in this Court. There is nothing on
\nrecord to show that any such meeting of high ranking
\nofficers    was    held    and the matter regarding fake
\nguarantees was considered and any decision was taken. So
\nfar as awarding of further contracts is concerned, high
\nranking    officers     of ONGC did not know about the
\nmisconduct of the petitioner in the month of March and
\nApril, 2000 that the preliminary inquiry was not held,
\nthe matter against the petitioner was not processed, and
\nhence the contract were awarded to the petitioner and
\ntherefore, no inference can be drawn          against   the
\nrespondent Corporation on the basis of the material on
\nrecord that ONGC has ever condoned the misconduct or
\nmischevious act of the petitioner and waived its right to
\nreopen the chapter. Mere delay in taking action against
\nthe petitioner is no ground to relieve the petitioner
\nfrom its liability.        In some of the Supreme Court
\ndecisions, it has been held that if any contract, licence
\nor service has been obtained by misrepresentation of
\nfacts or fraud and that was pre-requisite condition that
\ncontract, licence or service can be revoked or terminated
\nat any time, at the instance of any person as held by the
\nSupreme Court of India in the case of Union of India and
\nothers vs.      Bhaskaran<\/a> reported in 1995 (4) supplement,
\nSCC 100 and in the case of Kumari Mathavi and others vs.
\nAdditional Commissioner, Tribal Development and others
\n reported in 1995 Supplement (3) SCC, 241. In the present
\ncase, filing of bank guarantees is a pre-requisite
\ncondition for contract and it is found that the bank
\nguarantees filed by the petitioner were fake and forged
\nand that would amount to misconduct and on the basis of
\nthe misconduct, proper action can be taken banning future
\nbusiness or transaction and that, in my view, cannot be
\nsaid to be an improper action on the part of the
\nrespondent Corporation.\n<\/p>\n
14.The next contention of      the   learned
\ncounsel for the petitioner is that the impugned order is
\nnot a speaking order as it gives out no ground or reason
\nfor arriving at a conclusion and passing the order, hence
\nit is not sustainable in the eye of law and in this
\nregard, he relied on the decision of the learned Single
\nJudge of this Court in the case of Gujarat State Civil
\nSupplies Corporation Ltd. vs. Regional Provident Fund
\nCommissioner and others<\/a> reported in 1999(1) GLH, 803
\nwherein it has been held as under:\n<\/p>\n
 “Any authority making an order affecting civil
\n        right of any person adversely is not only under
\n        an obligation to afford a fair opportunity of
\n        hearing and adopt a fair procedure, but, is also
\n        under an obligation to make a speaking order,
\n        that is to say reason for his concluding must
\n        find place in the order. Order must speak for
\n        itself.   All those are parts of principles of
\n        natural justice. In the case of determination of
\n        sum payable by an employer to provident fund is
\n        required   to    be  determined after affording
\n        opportunity of hearing to concerned parties and
\n        that all the more necessitates the making of a
\n        speaking order.”\n<\/p>\n
15.I have considered this argument of the
\nlearned counsel for the petitioner. In law, there is no
\nprescribed format of order giving out reasons or grounds
\nfor arriving at a conclusion nor can we expect from
\npurely technical person like officers of ONGC to give out
\nreasons for a conclusion. That could have been done only
\nwhen before passing the impugned order, the officer could
\nhave consulted their advocate on panel for a proper form
\nto pass order giving out reasons for the final action.
\nHowever, it is mentioned in the impugned order that on
\nfacts mentioned in the show cause notice and contents of
\nthe reply, the decision has been taken to ban the
\nbusiness dealings with the petitioner for a period of 10
\nyears. In the show cause notice, it is stated that the
\npetitioner has submitted two fake bank guarantees and on
\n that ground, ONGC proposed as to why further business
\nshould not be banned requiring the reply within 15 days.
\nThe petitioner stated in the reply to the show cause
\nnotice that due to mistake of its employee, the bank
\nguarantees were filed which have been rectified by
\nreplacing new fresh bank guarantees in lieu of old bank
\nguarantees. Thus, undisputed facts have been considered
\nby the authorities in passing the impugned order. The
\nlearned counsel for the petitioner could not point out
\nanything which dislodges admitted\/undisputed fact of
\nfiling fake and forged bank guarantees. As such, in the
\nfacts, the impugned order cannot be said to be a
\nnon-speaking order and even if it gives no reasons, I do
\nnot   think   any   good reason that it vitiates the
\nproceedings as it relates to filing of two fake and
\nforged bank guarantees by the petitioner and that fact
\nhas not been disputed or denied by the petitioner.
\nHence, even if no ground is mentioned, the entire facts
\nhave been considered by this Court.      Therefore, this
\ncontention of the learned counsel for the petitioner is
\nalso not at all sustainable in the eye of law.\n<\/p>\n
16.The learned counsel for the respondents
\nraised a preliminary objection that this petition is not
\nentertainable due to successive     litigations.      The
\npetitioner filed civil suit in the trial court and
\nsucceeded in obtaining ad-interim injunction which was
\nset aside by the appellate court. Without availing a
\nregular remedy of Civil Revision Application in this
\nCourt for which a caveat had also been filed by the
\nrespondents, the petitioner has filed this petition when
\nthe suit was pending. The suit has been withdrawn during
\npendency of the present petition. In this respect, he
\nalso relied on certain authorities. However, the learned
\ncounsel for the petitioner contended that where the
\npetitioner has a constitutional right it can be decided
\nin a writ petition without availing of alternative remedy
\nand he also relied on certain authorities in this regard.
\nI do not think it proper to decide this issue at this
\nstage where the petition has no merit on other grounds
\nwhich have already been discussed and decided above.\n<\/p>\n
17.Thus, as    a   result   of   the   above
\ndiscussion, this petition deserves to be dismissed.
\nAccordingly, this petition fails and is hereby dismissed.
\nRule is discharged with no order as to costs.     Interim
\nrelief, if any stands vacated.\n<\/p>\n
***<\/p>\n
***darji\n  <\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Whether Reporters Of Local Papers … vs State Of on 2 August, 2011 Author: Kundan Singh, IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6458 of 2001 For Approval and Signature: Hon’ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-149814","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nWhether Reporters Of Local Papers ... vs State Of on 2 August, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/whether-reporters-of-local-papers-vs-state-of-on-2-august-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Whether Reporters Of Local Papers ... vs State Of on 2 August, 2011 - 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